Volume 33: Motions After Trial thru Negotiable Instruments-Chs. 371-385

Chapter 371 MOTIONS AFTER TRIAL
GENERAL INTRODUCTION
Scope of Chapter
This chapter discusses and sets forth forms and procedures relating to three motions made in the trial court after trial has been concluded.

Part I discusses motions for judgment notwithstanding the verdict under Code Civ. Proc. § 629[Deering's] .

Part II covers motions for new trial under Code Civ. Proc. § 657[Deering's] , including requests for alternative relief under Code Civ. Proc. § 662[Deering's] .

Part III covers motions to set aside and vacate a judgment and to enter another and different judgment under Code Civ. Proc. § 663[Deering's] .
Governing Statutes
Motions for judgment notwithstanding the verdict are governed generally by Code Civ. Proc. § 629[Deering's] . Code Civ. Proc. §§ 629[Deering's] and 659[Deering's] govern the time within which the motion must be made. Code Civ. Proc. § 664[Deering's] governs when judgment on the verdict must be entered.

Motions for new trial are governed by Code Civ. Proc. §§ 655-663.2[Deering's] and 914[Deering's] . A stay of execution of the judgment pending determination of a motion for a new trial is governed by Code Civ. Proc. § 918[Deering's] .

Motions to set aside and vacate a judgment and enter another and different judgment are governed by Code Civ. Proc. §§ 663[Deering's], 663a[Deering's] .
Comparison of Motions
The motion for judgment notwithstanding the verdict allows the court to enter a judgment that is different from the verdict rendered by the jury if a motion for directed verdict for the aggrieved party should have been granted had a previous motion been made [see Code Civ. Proc. § 629[Deering's] ]. The granting of this motion obviates the need for a new trial, but the court cannot weigh the evidence or judge the credibility of witnesses as it can on motion for new trial. The court may only determine whether or not there is any evidence of sufficient substantiality to support the verdict [ Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 690, 117 Cal. Rptr. 146 ].

The motion for new trial allows the court to reexamine an issue of fact or law after a trial and decision by a jury, the court, or a referee. When grounds exist, the verdict or decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues [ Code Civ. Proc. § 657[Deering's] ]. In nonjury trials, the court has the power to reopen the case and modify the statement of decision while denying the motion for new trial [see Code Civ. Proc. § 662[Deering's] ].

The motion to set aside and vacate a judgment and enter another and different judgment allows the court to correct judicial error if its legal bases for the decision are not consistent with or supported by the facts, or if the judgment or decree is not consistent with the special verdict [see Code Civ. Proc. § 663 ]. On granting the motion, the court cannot reexamine factual issues as it can on a motion for alternative relief in lieu of granting a new trial under Code Civ. Proc. § 662[Deering's] [ Dolan v. Superior Court (1920) 47 Cal. App. 235, 241, 117 P.2d 689 ]. In a case where judgment is set aside, the court must amend and correct the statement of decision [see Code Civ. Proc. § 663[Deering's] ].
Court Has Discretion to Determine Relief Requested
When a party brings a timely post-trial motion, the trial court has broad discretion to determine the relief being requested, regardless of formal title of the motion [ Shapiro v. Prudential Prop. and Cas. Co. (1997) 52 Cal. App. 4th 722, 727, 60 Cal. Rptr. 2d 698 ].

ILLUSTRATION: Party Requested Corrected Judgment and Received New Trial on Damages. A jury rendered a special verdict finding a homeowner's insurance carrier liable for negligent misrepresentation of the insured's gun collection and awarded the insured $180,000 in damages. The homeowner had listed $379,000 as the amount lost for his firearms inventory when his home burned in the Oakland-Berkeley fire. Following entry of judgment, the homeowner moved to set aside the judgment and enter a different judgment. The trial court granted a limited new trial on the issue of damages, and the insurance carrier appealed. Did the trial court's order stand? Yes. The court of appeal held that when a party brings a timely post-trial motion, the trial court has broad discretion to determine the relief being requested. In this case, the homeowner did not move for a new trial but did request relief consistent with new trial on damages [ Shapiro v. Prudential Prop. and Cas. Co. (1997) 52 Cal. App. 4th 722, 727, 60 Cal. Rptr. 2d 698 ].

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GENERAL RESEARCH GUIDE
State Statutes
Judgment Notwithstanding Verdict

Requirements and procedures for judgment notwithstanding verdict. Code Civ. Proc. § 629[Deering's]

Time for making motion for judgment notwithstanding verdict. Code Civ. Proc. §§ 629[Deering's], 659[Deering's] .

Time for entry of judgment on verdict. Code Civ. Proc. § 664[Deering's]

Motion for New Trial

Requirements and procedures for motion for new trial. Code Civ. Proc. §§ 655-663.2[Deering's], 914[Deering's]

Request for alternative relief to be granted in lieu of new trial. Code Civ. Proc. § 662[Deering's]

Motion to Set Aside and Vacate a Judgment and Enter Another and Different Judgment

Requirements and procedures for motion to set aside, vacate, and enter new and different judgment. Code Civ. Proc. §§ 663[Deering's], 663a[Deering's]

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Part I MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT
Introduction
Scope of Part
This part discusses the motion for judgment notwithstanding the verdict. It includes a written notice of motion [Form 1], an order denying the motion [Form 2], and a combined order granting and entering judgment notwithstanding the verdict [Form 3]. For an order staying execution of judgment pending the hearing on a motion for new trial that may be adapted for use in staying execution of judgment pending determination of a motion for judgment notwithstanding the verdict, see Ch. 254, Executions and Enforcement of Judgments.
Governing Statutes
Motions for judgment notwithstanding the verdict are governed generally by Code Civ. Proc. § 629[Deering's] . Code Civ. Proc. §§ 629[Deering's] and 659[Deering's] govern the time within which such motions must be made. Code Civ. Proc. § 664[Deering's] governs when judgment on the verdict must be entered.
Description
A motion for judgment notwithstanding the verdict, often referred to as a motion JNOV (i.e., a motion for judgment non obstante veredicto), is governed by Code Civ. Proc. § 629[Deering's] . The statute provides that the court, on its own motion or on motion of a party against whom a verdict has been rendered, must render judgment in favor of an aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made [see Code Civ. Proc. § 629[Deering's] ].
Who May Bring Motion
A judgment notwithstanding the verdict is usually sought by the defendant who thereby interposes a demurrer to the evidence. However, Code Civ. Proc. § 629[Deering's] permits a motion by an unsuccessful plaintiff [ Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 734, 85 Cal. Rptr. 281 ].
Effect of Motion for Directed Verdict
There is no longer a condition that a motion for a directed verdict be made before a judge can consider a motion for judgment notwithstanding the verdict [see amendment of Code Civ. Proc. § 629[Deering's] by Stats. 1963, ch. 205 ; Rollenhagen v. City of Orange (1981) 116 Cal. App. 3d 414, 417, 172 Cal. Rptr. 49 ]. Furthermore, a prior denial of a motion for a directed verdict will not prevent a subsequent granting of a motion for judgment notwithstanding the verdict [ Teich v. General Mills, Inc. (1959) 170 Cal. App. 2d 791, 794, 339 P.2d 627 ].
No Automatic Stay of Entry of Judgment
The motion for judgment notwithstanding the verdict no longer automatically stays entry of judgment until the motion is heard and decided [see amendment of Code Civ. Proc. § 664[Deering's] by Stats. 1961, ch. 604 ]. Judgment must be entered within 24 hours after the rendition of the verdict, whether or not a motion for judgment notwithstanding the verdict is pending, unless the court orders the case to be reserved for argument or further consideration, or grants a stay of proceedings [ Code Civ. Proc. § 664[Deering's] ].

Subject to Code Civ. Proc. § 918(b)[Deering's] , the trial court may stay the enforcement of any judgment or order whether or not an appeal will be taken from it and whether or not a notice of appeal has been filed [ Code Civ. Proc. § 918(a)[Deering's],(c)[Deering's] ]. Code Civ. Proc. § 918(b)[Deering's] provides that if the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court does not have power without the consent of the adverse party to stay the enforcement of the judgment or order pursuant to Code Civ. Proc. § 918[Deering's] for a period which exceeds for more than 10 days beyond the last date on which a notice of appeal could be filed. For forms for use in staying the execution of judgment, see Ch. 254, Executions and Enforcement of Judgments.
Valid Jury Verdict Required
For the court to grant a motion for judgment notwithstanding the verdict, the jury must have reached a verdict that is valid. A motion for judgment notwithstanding the verdict will not be granted if the jury has rendered a verdict that is so contradictory and unintelligible that the jury's intent is not ascertainable [ Mish v. Brockus (1950) 97 Cal. App. 2d 770, 776, 218 P.2d 849 ].

The JNOV procedure, by definition, applies only to claims as to which a jury reached a verdict. It does not apply to claims decided by the court [ Herr v. Nestle U.S.A., Inc. (2003) 109 Cal. App. 4th 779, 788, 135 Cal. Rptr. 2d 477 ].
General or Special Verdicts
Code Civ. Proc. § 629[Deering's] mentions only a ``verdict'' and it is not clear whether or not the motion for judgment notwithstanding the verdict is appropriate when the jury renders a special verdict and not a general verdict [see Code Civ. Proc. § 629[Deering's] , first paragraph]. A special verdict is one in which the jury finds the conclusions of fact, leaving the conclusions of law to the court, which then enters judgment accordingly [see Code Civ. Proc. § 624[Deering's] ]. Therefore, a special verdict may be inherently consistent with the evidence presented, thus obviating the need to correct a verdict that is erroneous as a matter of law by use of the motion for judgment notwithstanding the verdict.

However, despite this uncertainty, counsel may consider making the motion with respect to a special verdict when the grounds for a judgment notwithstanding the verdict exist, since it may be the only way to save the client the delay and expense of a new trial [see Lack of Substantial Evidence, below ].
Power of Trial Judge
The power of a trial judge to grant a motion for judgment notwithstanding the verdict is identical to his or her power to grant a directed verdict [ Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 ; Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal. App. 4th 1053, 1057-1058, 103 Cal. Rptr. 2d 790 ; Alexander v. State of California (1984) 159 Cal. App. 3d 890, 896, 205 Cal. Rptr. 758 ]. In other words, the judge cannot weigh the evidence or judge the credibility of witnesses, as he or she can do on a motion for new trial, but must accept the evidence tending to support the verdict as true, unless on its face it is inherently incredible [ Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 690, 117 Cal. Rptr. 146 , disapproved on other grounds in Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal. 3d 809, 822 n.5, 169 Cal. Rptr. 691, 620 P.2d 141 ; see Stevenson v. Oceanic Bank (1990) 223 Cal. App. 3d 306, 314, 272 Cal. Rptr. 757 ]. The court must disregard all conflicting evidence and indulge in every legitimate inference that may be drawn in support of the judgment, and may grant the motion only if there is no substantial evidence to support the verdict [ Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal. App. 4th 1053, 1057-1058, 103 Cal. Rptr. 2d 790 ; see discussion under Lack of Substantial Evidence, below].
Partial Judgment Notwithstanding the Verdict--In General
As with a directed verdict, a trial court may grant judgment notwithstanding the verdict as to some but not all issues [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 323, 274 Cal. Rptr. 766 ]. This procedure is derived from the requirement of Code Civ. Proc. § 629[Deering's] that a court grant judgment notwithstanding the verdict when a motion for directed verdict should have been granted had one been made [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 328-329, 274 Cal. Rptr. 766 (both procedural devices are different aspects of same judicial function and, for them to mesh together appropriately, it is necessary that standards be same for each procedure)].

An order granting partial judgment notwithstanding the verdict has the effect of modifying the judgment on the verdict. If the trial court otherwise upholds the verdict, then the judgment, as modified by the partial judgment notwithstanding the verdict, is immediately appealable [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ].
Effect of Order for Partial New Trial
When the trial court grants a new trial as to issues that are not affected by the partial judgment notwithstanding the verdict, then the new trial order has the effect of vacating and holding in abeyance the entire judgment, as modified by the order granting judgment notwithstanding the verdict, until one final judgment can be entered [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ].

An exception to the rule that a partial new trial order vacates and holds in abeyance the entire judgment applies when the judgment retains sufficient vitality to support appellate review if the matter is otherwise properly brought before the appellate court [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ]. For example, if the trial court has granted defendants a partial judgment notwithstanding the verdict on a cause of action for intentional infliction of emotional distress and a new trial based on jury misconduct on the remaining cause of action of negligence, the entire judgment is subject to review, including the portion affected by the judgment notwithstanding the verdict [see Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ].
Lack of Substantial Evidence
The grounds for granting a motion for judgment notwithstanding the verdict are the same as for granting a motion for directed verdict or nonsuit [see Code Civ. Proc. § 629[Deering's] ; Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ].

The primary requirement for judgment notwithstanding the verdict is that there be no substantial conflict in the evidence [ Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; Alexander v. State of California (1984) 159 Cal. App. 3d 890, 896, 205 Cal. Rptr. 758 ; Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57 ]. Thus, the court will grant a motion for judgment notwithstanding the verdict only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion will be denied [ Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; California Shoppers, Inc. v. Royal Globe Insurance Co. (1985) 175 Cal. App. 3d 1, 30, 221 Cal. Rptr. 171 ; Sprigg v. Garcin (1980) 105 Cal. App. 3d 869, 873, 164 Cal. Rptr. 677 ].
Standard--Motion by Defendant
The court will grant the verdict when and only when, disregarding conflicting evidence on behalf of defendant and giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, no evidence of sufficient substantiality supports a verdict in plaintiff's favor [ Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ; Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 51, 150 Cal. Rptr. 722 ].
Motion by Plaintiff
The court will grant judgment notwithstanding the verdict in favor of the plaintiff if the evidence, as a matter of law, dictates a determination of all the issues in the case in his or her favor [ Jach v. Edson (1967) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925 ].
Procedure on Court's Own Motion
The court may grant judgment notwithstanding the verdict on its own motion after return of the verdict if it decides that the verdict is not supported by substantial evidence [ Code Civ. Proc. § 629[Deering's] ; see also discussion under Lack of Substantial Evidence, above ]. It must act before the expiration of its power to rule on a motion for new trial and after five days notice to the parties [ Code Civ. Proc. §§ 629[Deering's], 659[Deering's] ].

One court of appeal has held that the requirement of Code Civ. Proc. § 629[Deering's] that a motion for judgment notwithstanding the verdict be made within the time limits for filing and serving notice of a motion for new trial does not apply to the court acting on its own motion [see Sturgeon v. Leavitt (1979) 94 Cal. App. 3d 957, 963-964, 156 Cal. Rptr. 687 ]. This time limitation would only apply to motions made by parties. Therefore, there would be no time restrictions on the court as long as it gives 5 days notice to the parties and acts on the motion after the time for serving and filing a motion for new trial has expired and before the time for ruling on a motion for new trial expires [see Sturgeon v. Leavitt (1979) 94 Cal. App. 3d 957, 963-964, 156 Cal. Rptr. 687 ; see also Code Civ. Proc. §§ 629[Deering's], 659[Deering's], 664[Deering's] ].
Procedure for Motion by Party--Oral or Written Notice of Motion
Code Civ. Proc. § 629[Deering's] , the statute authorizing judgments notwithstanding the verdict, does not state how the party against whom the verdict is rendered is to proceed. However, it appears that the motion may be made either orally, that is, in court immediately after the rendition of the verdict, or at a later hearing pursuant to a written notice of motion [see Abreu v. Svenhard's Swedish Bakery (1989) 208 Cal. App. 3d 1446, 1452 n.2, 257 Cal. Rptr. 26 ].
Time for Making Motion--In General
A party must make the motion within the time specified by Code Civ. Proc. § 659[Deering's] for filing and serving notice of intention to move for a new trial [ Code Civ. Proc. § 629[Deering's] ].

Under Code Civ. Proc. § 659[Deering's] , a notice of intention to move for a new trial may be filed before the entry of judgment, but after the jury, court, or referee has rendered a decision. It may alternatively be filed after judgment is entered, within the earliest of the following times [ Code Civ. Proc. § 659[Deering's] ]:

· 15 days after the court clerk mailed notice of entry of judgment under Code Civ. Proc. § 664.5[Deering's] .

· 15 days after any party served a written notice of entry of judgment on the moving party.

· 180 days after judgment is entered.

The statutory requirement of giving written notice of entry of judgment is satisfied by serving a copy of the file-stamped judgment in a county that no longer maintains a judgment book. To start the statutory time period for bringing a motion for judgment notwithstanding the verdict, it is not necessary to serve on the opposing party a separate document entitled notice of entry of judgment and to file in the trial court that document, as well as a copy of the judgment and proof of its service [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1267-1268, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ].

Under the express terms of Code Civ. Proc. §§ 629[Deering's], 659[Deering's] , the time limits for bringing a motion for judgment notwithstanding the verdict start to run either on the date of the court clerk's mailing or on the date of service on the moving party of notice of entry of judgment. To be service pursuant to Code Civ. Proc. § 664.5[Deering's] as required by section 659, the notice of entry of judgment mailed by the clerk must affirmatively state it is given ``upon order by the court'' or ``under section 664.5'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 64, 61 Cal. Rptr. 2d 166, 931 P.2d 344 ]. Otherwise, the time limits for motions for a new trial are triggered by service on the moving party of ``written notice'' of the ``entry of judgment'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Code Civ. Proc. § 659[Deering's] ]. When the moving party is served by mail, service is complete at the time the notice of entry of judgment is deposited in the mailbox [ Code Civ. Proc. § 1013(a)[Deering's] ; Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal. App. 4th 1042, 1048, 102 Cal. Rptr. 2d 673 ].

The written notice of entry of judgment served on the party who moves for judgment notwithstanding the verdict need not be a separate document entitled notice of entry of judgment. No particular form of notice is required, and in counties that do not maintain a judgment book, a file-stamped copy of the judgment suffices as ``written notice'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 57 n.2, 61 Cal. Rptr. 2d 166, 931 P.2d 344 ; McCordic v. Crawford (1943) 23 Cal.2d 1, 5, 142 P.2d 7 ].

Nothing in sections 629, 659 expressly requires the party serving written notice of entry of judgment to file any document with the trial court. If a prevailing party, consistent with section 664.5, serves written notice of the entry of judgment on the party moving for judgment notwithstanding the verdict and files the original notice of entry and a proof of service, the prevailing party necessarily will have complied with section 659 by ``serving written notice.'' The posttrial motion statutes do not, however, require filing of the original notice of entry (or of a file-stamped copy of the judgment) accompanied by proof of service in order to start the time limits for bringing the posttrial motions [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 (Van Beurden's suggestion that more is required by party to trigger time limits for new trial is dictum because it was unnecessary to its holding)].

This time limit is not lengthened by Code Civ. Proc. § 1013[Deering's] , which generally extends the time for exercising a right or doing an act when service is by mail, Express Mail or other method of overnight delivery, or fax [ Code Civ. Proc. §§ 659[Deering's], 1013[Deering's] ]. Code Civ. Proc. § 1010.6[Deering's] , which extends the time for exercising a right or doing an act after electronic service, as authorized by section 1010.6, also provides that it does not operate to extend the time for filing notice of intention to move for new trial [ Code Civ. Proc. § 1010.6(a)(6)[Deering's] ].

If a party fails to make a motion for judgment notwithstanding the verdict within the applicable deadline, the court lacks jurisdiction to hear the motion [ Younesi v. Lane (1991) 228 Cal. App. 3d 967, 972-973, 279 Cal. Rptr. 89 , disapproved on other grounds in Van Beurden Ins. Service, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 63, 61 Cal. Rptr. 2d 166, 931 P.2d 344 (disapproving Younesi to the extent it held that appellate courts must ``presume'' that a notice of entry of judgment mailed by clerk was ``ordered'' by the court, and thus constituted proper notice under Code Civ. Proc. § 664.5[Deering's] sufficient to trigger the 15-day deadline under Code Civ. Proc. § 659[Deering's] )].
Effect on Time for New Trial Motion
The making of a motion for judgment notwithstanding the verdict will not extend the time within which a party may file and serve notice of intention to move for a new trial [ Code Civ. Proc. § 629[Deering's] ].
Ruling on Motion--When Court May Rule on Motion
The court will not rule on the motion for judgment notwithstanding the verdict until expiration of the time within which a notice of intention to move for a new trial must be served and filed [ Code Civ. Proc. § 629[Deering's] ; for time period, see --Time for Making Motion--In General, above].

Pursuant to Code Civ. Proc. §§ 629[Deering's], 660[Deering's] , where there is no new trial motion filed, the latest date for ruling on a motion for JNOV is either of the following, whichever is earlier [ Pratt v. Vencor (2003) 105 Cal. App. 4th 905, 907, 129 Cal. Rptr. 2d 741 ]:

· Sixty days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Code Civ. Proc. § 664.5[Deering's] .

· Sixty days from and after service on the moving party by any party of written notice of the entry of the judgment.

The power of the court to rule on the motion for judgment notwithstanding the verdict does not extend beyond the last date on which the court can rule on a motion for new trial [ Code Civ. Proc. § 629[Deering's] ; for time period, see Procedural Checklist, Paragraph I(B)(5)(a), below ]. If this time passes without a determination on the motion, the motion is, in effect, denied [ Code Civ. Proc. § 629[Deering's] ].
With Motion for New Trial
If a notice of intention to move for a new trial is also filed, the court must rule on both motions at the same time [ Code Civ. Proc. § 629[Deering's] ]. The statutory language is directory and not mandatory; substantial compliance is sufficient provided rulings on both motions are made within the requisite time period [ Espinoza v. Rossini (1966) 247 Cal. App. 2d 40, 46, 55 Cal. Rptr. 205 ].
Effect of Judgment N.O.V. on Issue of Damages
If the court sets aside the judgment for defendants, notwithstanding the verdict, and proceeds to assess damages, it deprives defendants of their consitutional right to jury trial on that question [ Spillman v. City etc. of San Francisco (1967) 252 Cal. App. 2d 782, 787, 60 Cal. Rptr. 809 ]. However, there is a split of authority over the propriety of the court's granting of plaintiff's motion for judgment notwithstanding the verdict with a concurrent order for a new trial on the sole issue of damages.

One line of authority holds that it is error for the court to declare liability, notwithstanding the verdict, and to grant a new trial as to damages. This would violate the established rule of no multiple final judgments in a single action [see Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 734, 85 Cal. Rptr. 281 ; see Jach v. Edson (1967) 255 Cal. App. 2d 96, 101, 62 Cal. Rptr. 925 ].

Another line of cases holds that the grant of a new trial on all issues would involve a costly repetition of testimony, and therefore, the granting of the motion for judgment notwithstanding the verdict and for a new trial on the issue of damages is within the discretion of the trial court [see Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 517-518, 78 Cal. Rptr. 417 ; see Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 121, 120 Cal. Rptr. 681, 534 P.2d 377 (judgment notwithstanding verdict affirmed and case remanded to trial court to ascertain damages; although not entirely clear from the opinion, the effect of the decision appears to be an affirmance of the holding in Gordon, which would result in a disapproval by implication of contrary holdings in Moore and Jach )].
Notice of Court's Order
When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order must be given by the prevailing party to all other parties or their attorneys, in the manner provided in Code Civ. Proc. §§ 1010-1020[Deering's] [see Ch. 518, Service of Summons and Papers], unless notice is waived by all parties in open court and is entered in the minutes [ Code Civ. Proc. § 1019.5(a)[Deering's] ]. In the case of a signed appealable order entered in a contested action or proceeding, other than a proceeding for voidable marriage or for dissolution of marriage, legal separation, and summary dissolution, or small claims action, notice of entry of the order must be given in accordance with Code Civ. Proc. § 664.5[Deering's] [see Ch. 372, Motions and Orders].
Review--Reconsideration and Appeal
Generally, an order granting a judgment notwithstanding the verdict is neither a final judgment nor an appealable order [ Jordan v. Talbot (1961) 55 Cal. 2d 597, 602, 12 Cal. Rptr. 488, 361 P.2d 20 ; Herman v. Shandor (1970) 8 Cal. App. 3d 476, 479, 87 Cal. Rptr. 443 ]. However, the court may reconsider an order granting a motion for judgment notwithstanding the verdict at any time before judgment is entered on the order [ Jach v. Edson (1968) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925 ].

An appeal will lie from an order denying a motion for judgment notwithstanding the verdict [ Code Civ. Proc. § 904.1(a)(4)[Deering's] ; Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 ; Elisalda v. Welch's Sand & Gravel Co. (1968) 260 Cal. App. 2d 46, 50, 67 Cal. Rptr. 57 ]. Also, if judgment is entered pursuant to the court's granting of the motion, that judgment is appealable [ Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 ; Quintal v. Laurel Grove Hospital (1964) 62 Cal. 2d 154, 159, 41 Cal. Rptr. 577, 397 P.2d 161 ]. For discussion of appeals of postjudgment orders, including judgments notwithstanding the verdict, and protective or precautionary cross appeals of the original judgment in the event the postjudgment order is reversed on appeal, see Ch. 42, Appeal: Notice of Appeal, § 42.12[4A].
Standard on Review
The reviewing court follows the trial court's method of consideration of the evidence. When reviewing the validity of a judgment notwithstanding the verdict, the appellate court must resolve any conflict in the evidence and draw all reasonable inferences from the evidence in favor of the jury's verdict [ Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal. 3d 512, 515, 143 Cal. Rptr. 247, 573 P.2d 465 ]. The appellate court will affirm a judgment entered on an order granting judgment notwithstanding the verdict only if, reviewing all the evidence in the light most favorable to the party in whose favor the jury rendered the verdict, resolving all conflicts, and drawing all inferences in favor of that party, and deferring to the implicit credibility determinations of the trier of fact, there is no substantial evidence to support the jury's verdict [ Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ]. The scope of appellate review of a trial court's denial of a motion for judgment notwithstanding the verdict is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's conclusion, and when so found to uphold the trial court's denial of the motion [ Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1138, 122 Cal. Rptr. 2d 139 ; Wright v. Beverly Fabrics, Inc. (2002) 95 Cal. App. 4th 346, 351, 115 Cal. Rptr. 2d 503 ; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72-73, 92 Cal. Rptr. 2d 611 ; Pusateri v. E.F. Hutton & Co. (1986) 180 Cal. App. 3d 247, 250, 225 Cal. Rptr. 526 ]. However, if the issues deal solely with statutory interpretation and application of a statute to undisputed facts, review takes place de novo [ Wright v. Beverly Fabrics, Inc. (2002) 95 Cal. App. 4th 346, 352, 115 Cal. Rptr. 2d 503 ].

However, where the issues deal solely with the application of a statute to the facts supporting the verdict, which is a question of law, the appellate court will review the issues de novo [ Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal. App. 4th 710, 718-719, 112 Cal. Rptr. 2d 195 ].

The appellate court's function is to review the discretion exercised by the trial court in light of the evidence but not to replace that discretion unless it was arbitrarily exercised [ Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 511, 78 Cal. Rptr. 417 ].
Effect of Reversal
Although a reversal usually remands a case for a new trial, the effect of a reversal on a judgment notwithstanding the verdict is to restore the proceeding to the state of the record before the erroneous judgment was entered. In other words, appellant will have a recorded verdict in his or her favor, but will have no judgment entered. Appellant is then entitled under Code Civ. Proc. § 664[Deering's] to have judgment entered in his or her favor in conformity with the verdict [ Ferran v. Mulcrevy (1935) 9 Cal. App. 2d 129, 131, 48 P.2d 984 ; for discussion of procedure for entry of judgments under Code Civ. Proc. § 664[Deering's] , see Ch. 318, Judgments].

When a judgment notwithstanding the verdict is reversed on appeal, the reinstated judgment on the verdict is a new judgment for purposes of appeal, and the time for filing a notice of appeal from the reinstated judgment commences to run on the issuance of remittitur from the appellate court [ Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal. App. 3d 775, 779, 131 Cal. Rptr. 730 ]. For further discussion of Lippert, see Ch. 42, Appeal: Notice of Appeal, § 42.12[4A].
Alternative Motions--Motion for Judgment Notwithstanding Verdict Denied, Motion for New Trial Denied
The trial judge may decide, for example, that the evidence substantially supports the verdict, and, on examining the weight of the evidence, that the judgment rendered should stand. If the motions for judgment notwithstanding the verdict and for new trial are both denied and it appears on appeal that the motion for judgment notwithstanding the verdict should have been granted, the appellate court may order judgment to be so entered [ Code Civ. Proc. § 629[Deering's] ].
Judgment Notwithstanding Verdict Denied, New Trial Granted
If a new trial is granted, but a motion for judgment notwithstanding the verdict is denied, the order denying the motion for judgment notwithstanding the verdict is reviewable on appeal by the aggrieved party [ Code Civ. Proc. § 629[Deering's] ].
Both Motions Granted
If the court grants both motions, the order granting a new trial becomes effective only if the judgment notwithstanding the verdict is reversed on appeal and the order granting a new trial is either not appealed or is confirmed on appeal [ Code Civ. Proc. § 629[Deering's] ]. Thus, the motion for judgment notwithstanding the verdict will determine the outcome of the case in favor of the movant and a new trial will not proceed. However, if the opposing party appeals and the judgment notwithstanding the verdict is reversed, the motion for new trial becomes effective [see Dietrich v. Litton Industries, Inc. (1970) 12 Cal. App. 3d 704, 719, 90 Cal. Rptr. 856 (order granting new trial confirmed on appeal); but see Jach v. Edson (1967) 255 Cal. App. 2d 96, 100, 62 Cal. Rptr. 925 (order granting new trial remanded for reconsideration)].

If the court grants a partial judgment notwithstanding the verdict, the new trial order is contingent on reversal of the judgment notwithstanding the verdict to the extent the orders overlap, and is otherwise effective [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 332 n.7, 274 Cal. Rptr. 766 ].

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Research Guide
Cross References
For examples of noticed motions generally, see Ch. 372, Motions and Orders

For discussion of procedure and forms regarding service of papers, see Ch. 518, Service of Summons and Papers

For an application and order shortening time, see Ch. 524, Shortening and Extension of Time
California Points and Authorities
For memoranda of points and authorities relating to judgments notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 155, Motions After Trial, pt. I (Matthew Bender)
State Statutes
Requirements and procedures for judgment notwithstanding verdict. Code Civ. Proc. § 629[Deering's]

Time for making motion for judgment notwithstanding verdict. Code Civ. Proc. §§ 629[Deering's], 659[Deering's]

Time for entry of judgment on verdict. Code Civ. Proc. § 664[Deering's]

Appeal from order denying motion for judgment notwithstanding verdict. Code Civ. Proc. §§ 904.1(d)[Deering's], 904.2(e)[Deering's]

Consent of parties for judge to hear motion anywhere in state. Gov. Code § 69741.1[Deering's]
California Rules of Court
Filing of appeal from judgment or order denying judgment notwithstanding verdict. Cal. Rules of Ct., Rules 3(c)[Deering's], 123(c)[Deering's]
Decisions
Appeal--Effect on Trial Court's Power to Grant Motion

Motion for judgment notwithstanding verdict, like motion for new trial, is collateral matter and does not divest trial court of jurisdiction to grant judgment notwithstanding verdict after notice of appeal has been filed. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1210-1213, 238 Cal. Rptr. 130 (declining to follow contrary holding in Weisenburg v. Molina (1976) 58 Cal. App. 3d 478, 486, 129 Cal. Rptr. 813 )

--Standard of Review

On appeal from judgment for defendant notwithstanding verdict, appellate court will ordinarily use same standard trial court uses to rule on motion, i.e., will determine whether record, viewed most favorably to party securing verdict contains substantial evidence supporting verdict. However, where issues deal solely with application of statute to facts supporting verdict, which is question of law, appellate court will review de novo. Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal. App. 4th 710, 718-719, 112 Cal. Rptr. 2d 195

Bifurcated Trials

In bifurcated trial pursuant to Code Civ. Proc. § 598[Deering's] , if verdict in liability phase is for defendant, plaintiff then properly moves for judgment notwithstanding the verdict; if liability verdict for plaintiff, defendant required to wait until conclusion of damages phase of trial to make motion. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 936-937, 149 Cal. Rptr. 808

Court's Own Motion

Trial judge on own motion may grant judgment notwithstanding verdict if verdict, as to liability, is not supported by substantial evidence, but may not grant judgment on own motion on ground that damages were excessive or inadequate. Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908, 919, 114 Cal. Rptr. 622, 523 P.2d 662

Court may grant judgment notwithstanding verdict on own motion if it gives 5 days notice to parties, and acts on motion after time for serving and filing a motion for new trial has expired and before time for ruling on motion for new trial expires. Sturgeon v. Leavitt (1979) 94 Cal. App. 3d 957, 963-964, 156 Cal. Rptr. 687

Damages

Court errs when it declares liability notwithstanding verdict and grants new trial as to damages. Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 734, 85 Cal. Rptr. 281 ; Jach v. Edson (1967) 255 Cal. App. 2d 96, 101, 62 Cal. Rptr. 925 ; but see Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 517-518, 78 Cal. Rptr. 417 , contra

When court sets aside judgment for defendants notwithstanding verdict and proceeds to assess damages, court deprives defendants of constitutional right to jury trial on that question. Spillman v. City etc. of San Francisco (1967) 252 Cal. App. 2d 782, 787, 60 Cal. Rptr. 809

In action for personal injuries sustained by plaintiff in rear end automobile collision, when considerable conflict regarding amount of damages sustained by plaintiff since her credibility was impeached, trial court abused its discretion in granting judgment notwithstanding verdict for plaintiff and fixing amount of damages at $10,000. Spillman v. City etc. of San Francisco (1967) 252 Cal. App. 2d 782, 786-787, 60 Cal. Rptr. 809

Denial of Motion

Court properly denies motion for judgment notwithstanding the verdict when several reasonable inferences supporting verdict are deducible from the evidence. Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 877-878, 151 Cal. Rptr. 285, 587 P.2d 1098

Judgment notwithstanding verdict properly denied when evidence is conflicting or several reasonable inferences supporting verdict may be drawn. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

In products liability action, trial court properly denied defendant's motion for JNOV regarding compensatory and punitive damages, where evidence was sufficient to prove defendant acted with malice in designing and manufacturing 1978 Bronco that rolled over and killed plaintiffs' decedents and injured plaintiffs or in failing to warn consumers about absence of rollover protection. Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1137-1147, 122 Cal. Rptr. 2d 139

Party is entitled to judgment notwithstanding verdict only if there is no substantial evidence to support verdict and evidence compels judgment for moving party as matter of law; trial court must view evidence in light most favorable to verdict, disregard conflicting evidence, and indulge in every legitimate inference to support verdict; appellate court will determine de novo whether there is substantial evidence to support verdict and whether moving party is entitled to judgment in its favor as matter of law. Paykar v. Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal. App. 4th 488, 493-494, 111 Cal. Rptr. 2d 863

Defendant's motion for judgment notwithstanding verdict properly denied when even though most of evidence was circumstantial, substantial evidence existed from which jury could reasonably find corporate malice when defendant's management allegedly proceeded to manufacture automobile with knowledge of test results revealing design defects in Ford Pinto. Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 812-813, 174 Cal. Rptr. 348

In action by decedent's widow to determine if decedent had coverage under group life insurance policy at time of death, plaintiff's motion for judgment notwithstanding verdict properly denied when substantial conflict in evidence existed regarding whether decedent had returned to work after effective date of policy. Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57

Effect of Motion for Directed Verdict

Judge may consider motion for judgment notwithstanding verdict even though motion for directed verdict not previously made. Rollenhagen v. City of Orange (1981) 116 Cal. App. 3d 414, 417, 172 Cal. Rptr. 49 , disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711, 738, 257 Cal. Rptr. 708, 711 P.2d 406

Prior denial of motion for directed verdict does not prevent subsequent granting of motion for judgment notwithstanding verdict. Teich v. General Mills, Inc. (1959) 170 Cal. App. 2d 791, 794, 339 P.2d 627

Extent of Trial Court's Discretion

When post-trial motions attacking judgment have been made, trial court is not limited to order granting or denying relief requested in moving party's papers. Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1473, 272 Cal. Rptr. 480 (dictum; court amended judgment to delete finding on motion for new trial and judgment notwithstanding verdict), disapproved on other grounds in Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454

Court not required to disregard internally inconsistent testimony of witness or to make finding that testimony insufficient to support verdict, but must consider inconsistencies, resolve them if possible, and determine what weight to give testimony. Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 878, 151 Cal. Rptr. 285, 587 P.2d 1098

Trial judge does not weigh evidence or judge credibility of witnesses. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

Trial judge's power to grant judgment notwithstanding verdict is identical to power to grant directed verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

Trial court may grant judgment notwithstanding verdict only if verdict is not supported by substantial evidence; trial court may not weigh evidence, draw inferences contrary to verdict, or assess credibility of witnesses. Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611

Trial judge does not weigh evidence or judge credibility of witnesses, but must accept evidence tending to support verdict as true, unless on its face it is inherently incredible. Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 690, 117 Cal. Rptr. 146 , disapproved on other grounds in Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal. 3d 809, 822 n.5, 169 Cal. Rptr. 691, 620 P.2d 141

If trial court admitted improper evidence at trial, court may not ignore that evidence and grant motion for judgment notwithstanding verdict on ground that party offering evidence did not prove his or her case by legally competent evidence. Donahue v. Ziv Television Programs, Inc. (1966) 245 Cal. App. 2d 593, 609-610, 54 Cal. Rptr. 130

In relation to motion for judgment notwithstanding verdict, court considers incompetent evidence, if relevant and not objected to, as it would consider any other relevant testimony. Estate of Lekos (1952) 109 Cal. App. 2d 42, 53 240 P.2d 387

Grant of Motion

Motion for judgment notwithstanding verdict may be granted only if it appears from evidence, viewed in light most favorable to party securing verdict, that there is no substantial evidence in support. Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29

Judgment notwithstanding verdict properly granted only if it appears from evidence, viewed in light of party securing verdict, that there is no substantial evidence to support verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; Castro v. State of California (1981) 114 Cal. App. 3d 503, 512, 170 Cal. Rptr. 734

Defendant's motion for judgment notwithstanding verdict granted only when, disregarding conflicting evidence on behalf of defendants and giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, no evidence of sufficient substantiality supports verdict in plaintiff's favor. Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ; Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 51, 150 Cal. Rptr. 722

Motion for judgment notwithstanding verdict properly granted only if it appears from evidence, viewed in light most favorable to party securing verdict, that there is no substantial evidence to support verdict; if there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of verdict, motion is to be denied. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1213, 238 Cal. Rptr. 130

To be substantial, evidence must be of ponderable legal significance; term ``substantial evidence'' is not synonymous with ``any evidence''; to be substantial, evidence must be reasonable in nature, credible, and of solid value; hence, trial court, in ruling on motion for judgment notwithstanding verdict, may disregard evidence in support of verdict that is inherently incredible. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1214-1215, 238 Cal. Rptr. 130

In action in which auto mechanic brought defamation action against broadcasting company and former customer who gave television interview, court affirmed judgment for defendants notwithstanding verdict, stating that absent evidence of malice, the privilege of fair comment governed and defendants were entitled to judgment as matter of law. Rollenhagen v. City of Orange (1981) 116 Cal. App. 3d 414, 428-429, 172 Cal. Rptr. 49 , disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711, 738, 257 Cal. Rptr. 708, 711 P.2d 406

In legal malpractice action, where evidence existed from which defendant's negligence in representing plaintiffs could be inferred but record devoid of evidence that showed defendant's negligence proximately caused injury to plaintiffs, judgment notwithstanding the verdict for plaintiffs proper and trial court's denial of motion reversed. Sprigg v. Garcin (1980) 105 Cal. App. 3d 869, 873, 164 Cal. Rptr. 677

Motion for judgment notwithstanding verdict properly granted despite prior denial or motion for nonsuit. Walters v. Marler (1978) 83 Cal. App. 3d 1, 34, 147 Cal. Rptr. 655

Because seller of land indicated to purchaser that Bureau of Reclamation approval for purchase price would be easily obtained, court affirmed judgment for defendant notwithstanding verdict since defendant, as matter of law, made no misrepresentation of fact, only a nonactionable expression of opinion. Borba v. Thomas (1977) 70 Cal. App. 3d 144, 155, 138 Cal. Rptr. 565

In action in which addressee of telegram sued telegraph company for negligent nondelivery of telegram, defendant's motion for judgment notwithstanding the verdict properly granted on issue of punitive damages where record failed to show substantial evidence that company employee acted with malice or oppression in not providing information to correct or show mistake at earlier date. Trammell v. Western Union Tel. Co. (1976) 57 Cal. App. 3d 538, 556-558, 129 Cal. Rptr. 361

Court grants plaintiff's motion for judgment notwithstanding verdict if evidence, as matter of law, dictates a determination of all issues of case in his or her favor. Jach v. Edson (1967) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925

Primary requirement for judgment notwithstanding verdict is lack of substantial conflict in evidence. Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57

In action in which former bank employee sued bank for libel and slander, judgment for defendant bank notwithstanding verdict proper because reasonable minds could draw but one inference and that inference pointed to the truth of the statements made by bank. Washer v. Bank of America (1948) 87 Cal. App. 2d 501, 507, 197 P.2d 202

In action in which plaintiff sought to recover damages from apartment building manager for injuries suffered when she slipped on lobby floor, judgment for defendants notwithstanding verdict proper because plaintiff failed to prove causal connection between alleged negligence and resulting injury. McKellar v. Pendergast (1945) 68 Cal. App. 2d 485, 156 P.2d 950

Improper Grant of Motion

In action for personal injuries, when substantial evidence justified imposition of liability of defendants, court of appeal properly reversed lower court's granting of defendants' motion for judgment notwithstanding verdict. Hergenrether v. East (1964) 61 Cal. 2d 440, 445, 39 Cal. Rptr. 4, 393 P.2d 164

In action for medical malpractice, granting of defendants' motion for judgment notwithstanding verdict improper because trial court not permitted to weigh evidence and evidence was sufficient to go to jury on issue of negligence. Quintal v. Laurel Grove Hospital (1964) 62 Cal. 2d 154, 159-163, 41 Cal. Rptr. 577, 397 P.2d 161

Granting of defendant's motion for judgment notwithstanding verdict improper where inference drawn by jury that defendant was negligent was supported by evidence. Gray v. Southern Pacific Co. (1944) 23 Cal. 2d 632, 646, 145 P.2d 561

In age discrimination action under Fair Employment and Housing Act [ Gov. Code § 12900[Deering's] et seq. ], trial court erred in granting judgment notwithstanding verdict, where evidence that former employee was replaced by older person within protected class did not preclude any inference that employee was terminated based on age and that evidence, while it weighed against inference that employee was terminated based on age, did not conclusively establish absence of age discrimination or preclude jury from drawing other inferences; and where employee presented evidence that charges on which termination was alleged based were false and resolution of conflict depended entirely on whether jury chose to credit former employee or current employee, and former employee offered circumstantial evidence that decision was based on age that constituted substantial evidence. Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 73-78, 92 Cal. Rptr. 2d 611

Motion for judgment notwithstanding verdict was improperly granted in legal malpractice action when evidence of malpractice was insufficient as matter of law. Sukoff v. Lemkin (1988) 202 Cal. App. 3d 740, 743, 249 Cal. Rptr. 42

Motion for judgment notwithstanding verdict was improperly granted when court's stated reasons for granting motion were legally insufficient; court's motion as requiring reversal when it did not apply test of Gov. Code § 830.2[Deering's] in reaching its conclusion in action under Tort Claims Act alleging dangerous condition of public property. Alexander v. State of California (1984) 159 Cal. App. 3d 890, 898-902, 205 Cal. Rptr. 758

Grant of motion for judgment notwithstanding verdict was erroneous when, viewing evidence most favorable to verdict, it could not be reasonably concluded as matter of law that there was no substantial evidence to support verdict. Arthur v. Avon Inflatables Ltd. (1984) 156 Cal. App. 3d 401, 405-408, 203 Cal. Rptr. 1

If different conclusions can be rationally drawn from evidence presented, then case presents question for jury and judgment notwithstanding verdict is improperly granted. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 940, 149 Cal. Rptr. 808

Motion for judgment notwithstanding verdict improperly granted where plaintiff's expert witness, a fire chief, testified on cause of fire, and although testimony was internally inconsistent and inherently weak, credibility of witness presented question for jury to resolve. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 938-941, 149 Cal. Rptr. 808

In action by plaintiff for damages for breach of escrow agreement, court's granting of defendant's motion for judgment notwithstanding verdict improper since evidence in conflict on points foundational to court's ruling. McCown v. Spencer (1970) 8 Cal. App. 3d 216, 226, 87 Cal. Rptr. 213

In action to recover value of merchandise allegedly sold by plaintiffs to defendants on open book account, lower court's granting of plaintiff's motion for judgment notwithstanding verdict improper where it was apparent from evidence that jury could have returned various verdicts, all supported by substantial evidence. Hozz v. Felder (1959) 167 Cal. App. 2d 197, 200, 334 P.2d 159

Improper Denial of Motion

Where owner of automobile polishing company sued insurer on claims connected with theft of two automobiles, denial of insurer's motion for judgment notwithstanding verdict improper where no substantial evidence that failure to reimburse plaintiff was breach of contract. Clark v. Bellefonte Ins. Co. (1980) 113 Cal. App. 3d 326, 335, 169 Cal. Rptr. 832

Jury Verdict

Defendant's contention it was entitled to JNOV on unfair competition claim was groundless, where court, not jury, decided unfair competition claim. Herr v. Nestle U.S.A., Inc. (2003) 109 Cal. App. 4th 779, 788, 135 Cal. Rptr. 2d 477

Motion for judgment notwithstanding verdict denied where jury has rendered verdict that is so contradictory and unintelligible that intent is not ascertainable. Mish v. Brockus (1950) 97 Cal. App. 2d 770, 776, 218 P.2d 849

Review--Appealable Judgments

Moving party may appeal from judgment or from order denying motion for judgment notwithstanding verdict, or both. Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29

Judgment entered pursuant to court's granting of motion appealable judgment. Quintal v. Laurel Grove Hospital (1964) 62 Cal. 2d 154, 159, 41 Cal. Rptr. 577, 397 P.2d 161

Order granting judgment notwithstanding verdict not final judgment, therefore not appealable order. Jordan v. Talbot (1961) 55 Cal. 2d 597, 602, 12 Cal. Rptr. 488, 361 P.2d 20 .

Judgment notwithstanding verdict sustained when, as matter of law, no other reasonable conclusion is legally deducible from the evidence and any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it. Enis v. Specialty Auto Sales (1978) 83 Cal. App. 3d 928, 941, 148 Cal. Rptr. 255

Because defendants were granted judgment notwithstanding verdict, defendants not allowed to take precautionary direct appeal since judgment notwithstanding verdict vacated earlier judgment on verdict for plaintiffs and no appeal lies from vacated judgment. Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal. App. 3d 775, 777-778, 131 Cal. Rptr. 730

If a judgment notwithstanding the verdict is reversed on appeal, reinstated judgment on verdict is new judgment for purposes of appeal and time for filing notice of appeal commences to run on issuance of remittitur from appellate court. Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal. App. 3d 775, 779, 131 Cal. Rptr. 730

Appeal lies from order denying motion for judgment notwithstanding verdict. Elisalda v. Welch's Sand and Gravel Co. (1968) 260 Cal. App. 2d 46, 50, 67 Cal. Rptr. 57

Reversal on judgment notwithstanding verdict restores proceeding to state of record before erroneous judgment entered with appellant having recorded verdict in his or her favor, but with no judgment entered. Ferran v. Mulcrevy (1935) 9 Cal. App. 2d 129, 131, 48 P.2d 984

--Standard on Review

Standard of review of order denying motion for JNOV or judgment is whether any substantial evidence, contradicted or uncontradicted, supports jury's conclusion. Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29

When reviewing validity of judgment notwithstanding verdict, appellate court resolves any conflict in evidence and draws all reasonable inferences from it in favor of jury's verdict. Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal. 3d 512, 515, 143 Cal. Rptr. 247, 573 P.2d 465

Appellate court may uphold order granting judgment notwithstanding verdict and affirm judgment based on it, only if, reviewing all evidence in light most favorable to party for whom verdict was rendered, resolving all conflicts, and drawing all inferences in that party's favor, and deferring to implicit credibility determinations of trier of fact, there is no substantial evidence to support verdict in that party's favor. Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611

Scope of appellate review of motion for judgment notwithstanding verdict requires determination of whether any substantial evidence, contradicted or uncontradicted, supports jury's conclusions. Sukoff v. Lemkin (1988) 202 Cal. App. 3d 740, 743, 249 Cal. Rptr. 42

Judgment notwithstanding the verdict sustained only when it can be said as a matter of law that no other reasonable conclusion is deducible from evidence. Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 962, 111 Cal. Rptr. 210

Appellate court reviews discretion exercised by trial court in light of evidence but not replacing it unless arbitrarily exercised. Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 511, 78 Cal. Rptr. 417

Time for Ruling on Motion

In employment action resulting in verdict for plaintiff, in which defendants filed no notice of intention to move for new trial, but only filed motion for JNOV, trial court properly court issued its decision on JNOV motion within 60 days from service of notice of entry of judgment and properly denied plaintiff's motion to strike court's order granting partial JNOV as untimely, where filing of JNOV motion is not statutory event under Code Civ. Proc. § 660[Deering's] triggering time for court's ruling. Pratt v. Vencor (2003) 105 Cal. App. 4th 905, 907-911, 129 Cal. Rptr. 2d 741

Defendant's motion for judgment notwithstanding verdict was timely granted where court's signed memorandum of opinion and minute order granting motion were filed with clerk 17 days after notice of entry of judgment was mailed, even though formal judgment not signed and filed until after expiration of 60-day period for court to rule on motion [ Code Civ. Proc. §§ 629[Deering's], 660[Deering's] ]. Catania v. Halcyon Steamship Co. (1975) 44 Cal. App. 3d 348, 350, 118 Cal. Rptr. 513

Requirement of Code Civ. Proc. § 629[Deering's] that court rule both on motion for judgment notwithstanding verdict and on motion for new trial at same time when both motions are made, as directory and not mandatory and substantial compliance was sufficient, provided both motions made within requisite time period. Espinoza v. Rossini (1966) 247 Cal. App. 2d 40, 45-46, 55 Cal. Rptr. 205

Time for Serving Motion

Prevailing party's attorney's mailing to opposing counsel of photocopy of file-stamped and dated judgment started time limit for serving motion for judgment notwithstanding the verdict under Code Civ. Proc. §§ 629[Deering's], 659[Deering's] , so that service of motion 26 days later was untimely, where service of written notice of entry of judgment and filing of original notice of entry and proof of service complied with section 659, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067
Law Reviews
Christie, Lawful Departures From Legal Rules: ``Jury Nullification'' and Legitimated Disobedience, 62 Cal. L. Rev. 1289 (1974)

Richardson, Civil Procedure: California Code of Civil Procedure Section 629[Deering's]: Motion for Nonsuit Should Be Sufficient Foundation for Judgment Notwithstanding the Verdict, 48 Cal. L. Rev. 816 (1960)
Text References
California Trial Practice: Civil Procedure During Trial, ch. 25, Motions After Trial (Cal. C.E.B. 3d ed. 1995)

Witkin, California Procedure, vol. 7, Trial, § 446 et seq., vol. 8, Attack on Judgment in Trial Court, § 54 et seq. (4th ed. 1997)

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Procedural Checklist
I Moving Party
§ A Preliminary Determinations
1. Ascertain whether or not grounds for a motion for judgment notwithstanding the verdict exist. The grounds are as follows:

a. No substantial evidence to support verdict; and

b. A motion for directed verdict should have been granted had a previous motion been made [ Code Civ. Proc. § 629[Deering's] ; see discussion in the Introduction under Lack of Substantial Evidence, above].

2. Decide whether you will make oral or written motion.

An oral motion for judgment notwithstanding the verdict is available in addition to the written motion and may be made in court immediately after rendition of the verdict. For a discussion of procedures for a written motion, see Paragraph B, below.

3. Determine whether or not stay in execution of judgment under Code Civ. Proc. § 918[Deering's] is desired. For forms for use in staying execution, see Ch. 254, Executions and Enforcement of Judgments.

4. Assess availability of alternative procedures by which the aggrieved party may obtain a judgment in his or her favor. Alternative procedures are as follows:

a. Motion for new trial [ Code Civ. Proc. § 657[Deering's] ; see Part II, below].

b. Motion for judgment on special finding [ Code Civ. Proc. § 625[Deering's] ; Ch. 326A, Jury Verdicts].

c. Motion to vacate [ Code Civ. Proc. § 663[Deering's] ; see Part III, below].

d. Motion to correct clerical error or set aside void judgment [ Code Civ. Proc. § 473(d)[Deering's] ; see Ch. 489, Relief From Judgments and Orders].
§ B Preparation of Papers
1. Prepare the notice of motion for judgment notwithstanding the verdict [Form 1] in the following number of copies:

a. Original for filing.

b. One copy for the opposing party's attorney of record, or if none, for the opposing party.

c. One copy for client, if desired.

d. One office copy.

e. Additional copies as desired.

2. Date and sign the notice of motion.

3. Prepare the accompanying memorandum of points and authorities in the same number of copies as the notice of motion and attach a copy to each copy of the notice.

For a memorandum of points and authorities in support of a motion for judgment notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 155, Motions After Trial (Matthew Bender).

4. Prepare the proof of service in same number of copies as the notice of motion and attach the original to the original notice of motion and a copy to each copy of the notice.

a. If notice is to be mailed by counsel, prepare certificate of service [ Code Civ. Proc. § 1013a(2)[Deering's] ].

b. If notice is to be mailed by someone other than counsel, prepare affidavit of service [ Code Civ. Proc. § 1013a(1)[Deering's] ] or declaration under penalty of perjury [ Code Civ. Proc. § 2015.5[Deering's] ].

For forms of proof of service, see Ch. 518, Service of Summons and Papers.

5. Contact court clerk to determine local practice regarding setting of time for hearing.

a. In some jurisdictions, counsel sets own time for hearing, taking care to give opposing parties adequate notice of hearing under Code Civ. Proc. § 1005(b)[Deering's] . If counsel is to set time, determine time period during which motion can be heard.

NOTE

NOTE: Compute time by excluding first day and including last, unless the last day is a holiday, then it is also excluded [ Code Civ. Proc. §§ 12[Deering's], 12a[Deering's] ; see Gov. Code §§ 6700[Deering's], 6701[Deering's] (list of holidays)].

(1) Calculate last day court can rule on motion.

The last day the court can rule on a motion for judgment notwithstanding the verdict is the same as the last day it can rule on a motion for new trial, or, whichever of the following is earliest:

(a) If notice of entry of judgment given,

(i) 60 days after clerk or prevailing party mails notice of entry of judgment under Code Civ. Proc. § 664.5[Deering's] , or

(ii) 60 days after any party serves written notice of entry of judgment of the moving party [ Code Civ. Proc. § 660[Deering's] ; see also Code Civ. Proc. § 629[Deering's] ].

(b) If notice of entry of judgment not given,

60 days after intention to move for judgment notwithstanding the verdict was filed [ Code Civ. Proc. § 660[Deering's] ; see also Code Civ. Proc. § 629[Deering's] ].

(2) Calculate first day court can rule on motion.

The court cannot rule on the motion until the expiration of the time in which motion for new trial must be served and filed [see Paragraphs I(C)(1)(a),(b), below].

(3) Determine length of notice of hearing to be given to opposing parties.

21 calendar days plus additional time for service by mail, overnight delivery, or fax [ Code Civ. Proc. § 1005(b)[Deering's] ]. An extension may apply in case of electronic service made pursuant to a local rule adopted under Code Civ. Proc. § 1010.6[Deering's] [see Code Civ. Proc. § 1010.6(a)(6)[Deering's] ; see also Ch. 518, Service of Summons and Papers, § 518.41[8]].

(4) With these relevant dates in mind, counsel is advised to contact the judge who presided at trial and who will now hear the motion to arrange a convenient time between the times set out in Paragraphs (1) and (2), above. Counsel should then fill in the time and place of hearing in the notice of motion.

b. In other jurisdictions, the court will appoint a time for the hearing and the clerk will notify the parties of the appointed time. In this case, counsel should not fill in the time and place of hearing on the notice of motion.

6. Determine local court practice regarding preparation of judgments notwithstanding the verdict and orders denying the motion [see Comments to Form 2, below].
§ C Service and Filing
1. Determine time limits within which motion for judgment notwithstanding verdict must be made.

The motion must be served and filed within the period prescribed for serving and filing notice of intention to move for a new trial [ Code Civ. Proc. § 629[Deering's], 659[Deering's] ]. That period is as follows [ Code Civ. Proc. § 659[Deering's] ]:

a. Before entry of judgment, but after jury has rendered a decision [ Code Civ. Proc. §§ 659[Deering's], 664[Deering's] ],

b. Or the earliest of the following:

(1) 15 days after the court clerk or moving party mails notice of entry of judgment under Code Civ. Proc. § 664.5[Deering's] ,

(2) 15 days after any party serves written notice of entry of judgment on the moving party, or

(3) 180 days after judgment is entered.

2. Serve notice of motion and accompanying papers on each opposing party's attorney, or if none, on each opposing party [ Code Civ. Proc. §§ 1011[Deering's], 1012[Deering's], 1015[Deering's] ; see also Ch. 518, Service of Summons and Papers].

3. Deliver original notice of motion and attached originals of accompanying papers to court clerk for filing.
II Opposing Party
§ A Preliminary Determinations
1. Examine notice of motion to determine if it is timely given.

2. Examine supporting memorandum of points and authorities.


§ B Preparation of Papers
1. Prepare opposing memorandum of points and authorities and make copies [same number as for notice of motion, see Paragraphs I(B)(1)(a)-(e), above].

For a memorandum of points and authorites in opposition to a motion for judgment notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial (Matthew Bender).

2. Determine local practice regarding preparation of orders denying motions for judgment notwithstanding the verdict [see Comments to Form 2, below].
§ C Service and Filing
Serve and file memorandum of points and authorities at least ten calendar days before the hearing [see Code Civ. Proc. § 1005(b)[Deering's] ].

______________


Forms
Form 1 Notice of Motion for Judgment Notwithstanding the Verdict [Code Civ. Proc. § 629]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ], )
Plaintiff,)NO. __________
vs. )NOTICE OF MOTION AND
)MOTION FOR JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
_________________________ [name ], )
Defendant.)
)

To _________________ [specify party, e.g., plaintiff] _________________ [name ] and to _________________ [name ], his/her attorney of record:

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [address ], _________________ [city ], _________________ [specify party, e.g., defendant] _________________ [name ] will, and hereby does, move for an order for judgment in his/her favor, notwithstanding the verdict. The motion will be made on the following grounds:

1. After viewing the evidence in the light most favorable to _________________ [specify party securing verdict, e.g., plaintiff ], there is no substantial evidence to support the jury's verdict in that party's favor and a directed verdict for _________________ [specify moving party, e.g., defendant] should have been granted had a previous motion been made.

[2. On each and all of the grounds on which the motion for a directed verdict was made.]

The motion will be based on this notice of motion and the memorandum of points and authorities served and filed herewith, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [ firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________ [party's status ]

COMMENTS

CAUTION: Although under Cal. Rules of Ct., Rules 301[Deering's], 303(a)[Deering's] , a memorandum of points and authorities is not specifically required to be submitted in support of the motion, it is better practice to submit a memorandum as is generally required in law and motion proceedings [see Code Civ. Proc. §§ 1005(b)[Deering's], 1010[Deering's] ; Cal. Rules of Ct., Rule 313(a)[Deering's] ]. For discussion and forms, see Ch. 417, Points and Authorities.

Use of Form

This notice of motion is for use by a plaintiff or defendant to secure an order for judgment notwithstanding the verdict pursuant to Code Civ. Proc. § 629[Deering's] .

Time and Place of Hearing

The notice must state the date, hour, address, and department or room number where the motion will be heard. To determine the date and time to be inserted, counsel must know the minimum notice period allowable. Generally, the minimum notice period is 21 calendar days plus additional time for service by mail, overnight delivery, or fax [ Code Civ. Proc. § 1005(b)[Deering's] ], unless time is shortened by order of the court [see Code Civ. Proc. § 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317(b)[Deering's] ; Ch. 524, Shortening and Extension of Time]. An extension may also apply in case of electronic service made pursuant to a local rule adopted under Code Civ. Proc. § 1010.6[Deering's] [see Code Civ. Proc. § 1010.6(a)(6)[Deering's] ; for discussion, see Ch. 518, Service of Summons and Papers, § 518.41[8]]. The period is calculated by excluding the first day and including the last, unless the last day is a holiday [ Code Civ. Proc. § 12[Deering's] ].

In some jurisdictions, counsel chooses the date for hearing of the motion for judgment N.O.V. taking into account the minimum required notice period. Since the motion will be heard and determined by the judge who presided at trial, counsel is advised to first contact the court to arrange a convenient time for the trial judge.

In other jurisdictions, the court appoints a time for the hearing of the motion and the clerk notifies the parties of the appointed time. In this case, the notice of motion does not set forth the time.

Since local practice varies on the determination of date and time of hearing, counsel should first check with the court clerk to determine local rules.

Papers on Which Motion is Based

The notice must state the papers on which the motion is based [ Code Civ. Proc. § 1010[Deering's] ]. It may not be necessary to file an affidavit or declaration since the court must rely on the record of the case to make a judgment. However, a declaration or affidavit may be necessary in an alternative motion for judgment notwithstanding the verdict and new trial [see Code Civ. Proc. § 658[Deering's] ].

Combined Motion for Judgment Notwithstanding the Verdict With Notice of Intention to Move for New Trial

The motion for judgment notwithstanding the verdict is frequently combined with a notice of intention to move for a new trial. For a form of notice of intention to move for new trial, see Form 10 in Part II of this chapter. Since the court must rule on both motions at the same time [ Code Civ. Proc. § 629[Deering's] ], it will appoint the time for hearing and the clerk will notify the parties of the designated time [ Code Civ. Proc. § 661[Deering's] ]. For this reason, the combined notice of motion should not set forth the time for hearing [see Code Civ. Proc. § 661[Deering's] ; see also Introduction to Part II under --Time for Hearing, below].

Trial Court May Grant Relief Not Requested

When posttrial motions attacking the judgment have been made, the trial court is not limited to an order granting or denying the relief requested in the moving party's papers [see Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 609-612, 248 P.2d 910 (court may grant new trial on all issues when motion was limited to fewer issues); Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1473, 272 Cal. Rtpr. 480 (dicta; court amended judgment on combined motion for new trial and judgment notwithstanding the verdict), disapproved on other grounds in Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 ]. For further discussion, see Form 10, Comments.

REFERENCES

Cross References

For alternative forms of captions, see Ch. 108, Captions and Introductions

For examples of noticed motions generally, see Ch. 372, Motions and Orders

For an application for shortening time, see Ch. 524, Shortening and Extension of Time

California Points and Authorities

For memoranda of points and authorities in support of and in opposition to a motion for judgment notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial (Matthew Bender)

State Statutes

Motions for judgment notwithstanding the verdict. Code Civ. Proc. § 629[Deering's]

Time within which motion must be made. Code Civ. Proc. §§ 629[Deering's], 659[Deering's]

When judgment on verdict must be entered. Code Civ. Proc. § 664[Deering's]

Decisions

Mailing to opposing counsel of photocopy of file-stamped and dated judgment starts 15-day time limit for serving motion for judgment notwithstanding verdict under Code Civ. Proc. §§ 629[Deering's], 659[Deering's] . Service of written notice of entry of judgment and filing of original notice of entry and proof of service complies with section 659, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067

Cardinal requirement for judgment notwithstanding the verdict is lack of substantial conflict in evidence; trial court is not to weigh evidence or judge credibility of witnesses in ruling on motion. Alexander v. State of California (1984) 159 Cal. App. 3d 890, 896, 205 Cal. Rptr. 758

Primary requirement for judgment notwithstanding verdict as lack of substantial conflict in evidence. Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57

Judgment notwithstanding verdict is properly granted only if it appears from evidence, viewed in light of party securing verdict, that there is no substantial evidence to support verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Castro v. State of California (1981) 114 Cal. App. 3d 503, 512, 170 Cal. Rptr. 734

Defendant's motion for judgment notwithstanding verdict was granted only when, disregarding conflicting evidence on behalf of defendants and giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitmate inference which may drawn from that evidence, no evidence of sufficient substantiality supports verdict in plaintiff's favor. Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ; Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 51, 150 Cal. Rptr. 722
Form 2 Order Denying Motion for Judgment Notwithstanding the Verdict [Code Civ. Proc. § 629]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ], )
Plaintiff,)
)NO. __________
vs. )ORDER DENYING JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
)[Code Civ. Proc. § 629[Deering's]]
_________________________ [name ], )
Defendant.)
)

The motion of _________________ [specify moving party, e.g., defendant] _________________ [name ] for an order for judgment notwithstanding the verdict came on regularly for hearing by the court this date. Plaintiff appeared by counsel _________________ [name ]; defendant appeared by counsel _________________ [name ].

On proof made to the satisfaction of the court that the motion ought to be denied,

IT IS ORDERED that the motion, be and it hereby is, denied on the following grounds:

[specify grounds such as the following ]

1. The evidence is conflicting.

2. Several reasonable inferences are deducible from the evidence.

3. The verdict is sustained by sufficient or substantial evidence.

4. The evidence presents a question for the jury's determination.

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

The foregoing order is for use when the court denies a motion for judgment notwithstanding the verdict.

Orders and judgments are not ordinarily prepared until after the court has ruled on the motion. The court frequently takes the motion under submission after the hearing and notifies the parties at that time or at a later time as to the preparation of the judgments and orders. Counsel should check with the court clerk to determine local practice.

Appealability of Order Denying Motion

An order denying a motion for judgment notwithstanding the verdict is appealable [ Code Civ. Proc. § 904.1(d)[Deering's], 904.2(e)[Deering's] ; see also discussion in Introduction under Review Introduction under Review Introduction under Review, above].

REFERENCES

Decisions

Judgment notwithstanding verdict as improper where several reasonable inferences are deducible from evidence. Clemmer v. Hartford (1978) 22 Cal. 3d 865, 877-878, 151 Cal. Rptr. 285, 587 P.2d 1098

Judgment notwithstanding verdict as denied where evidence is conflicting or several reasonable inferences may be drawn. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

Where different conclusions can be rationally drawn from evidence presented, then case presents question for jury and judgment notwithstanding verdict as improper. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 940, 149 Cal. Rptr. 808

Where substantial evidence supports jury's finding, judgment notwithstanding verdict as improper. Estate of Franco (1975) 50 Cal. App. 3d 374, 381, 123 Cal. Rptr. 458

Where evidence in conflict on points foundational to trial court ruling, judgment ordered for defendant notwithstanding verdict for plaintiff, as improper. McCown v. Spencer (1970) 8 Cal. App. 3d 216, 226, 87 Cal. Rptr. 213

Appeal as lying from order denying motion for judgment notwithstanding the verdict. Elisalda v. Welch's Sand and Gravel Co. (1968) 260 Cal. App. 2d 46, 50, 67 Cal. Rptr. 57

See also Comments and References to Form 1.
Form 3 Order for and Judgment Notwithstanding the Verdict [Code Civ. Proc. § 629]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ], )
Plaintiff,)NO. __________
vs. )ORDER FOR AND JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
_________________________ [name ], )[Code Civ. Proc. § 629[Deering's]]
Defendant.)
)

This cause came on regularly for trial on _________________ [date ], in [_________________ (Department or Division) _________________ of] the above-entitled court, the Honorable _________________ [name ], Judge, presiding. Plaintiff appeared by his/her attorney _________________ [name ] and defendant appeared by his/her attorney _________________ [name ].

A jury of _________________ [number ] persons was regularly impaneled and sworn to try the action. Witnesses on the part of both plaintiff and defendant were sworn and examined. After hearing the evidence, the arguments of counsel, and instructions of the court, the jury retired to consider their verdict, subsequently returned to court, and being called, answered to their names and duly rendered their verdict in words and figures as follows: _________________ [set forth verdict and date judgment was entered ].

Thereafter, _________________ [specify moving party, e.g., defendant] _________________ [name ] moved the court for judgment in his/her favor, notwithstanding the verdict, and this motion came on regularly to be heard before this court on _________________ [date ], _________________ [name ] appearing as counsel for plaintiff _________________ [name ] and _________________ [name ] as counsel for defendant _________________ [name ].

The motion was argued and submitted for decision, and the court being fully advised in the matter, and good cause appearing therefor:

IT IS HEREBY ORDERED AND ADJUDGED:

1. That the motion of _________________ [specify moving party, e.g., defendant] _________________ [name ] for judgment in his/her favor, notwithstanding the verdict of the jury, is hereby granted.

2. That the judgment entered on _________________ [date ], on the verdict is vacated and set aside.

3. That _________________ [specify moving party, e.g., defendant] _________________ [name ] have judgment _________________ [set forth terms of judgment in favor of moving party ].

4. That _________________ [specify moving party, e.g., defendant] _________________ [name ] have and recover from _________________ [specify opposing party, e.g., plaintiff] _________________ [name ] costs and disbursements in the sum of $_________________.

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

The foregoing form is an order granting a motion for judgment notwithstanding the verdict.

REFERENCES

Decisions

Where evidence leads to conclusion that plaintiff should recover as matter of law under each cause of action, trial court as properly granting plaintiff's motion for judgment notwithstanding verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 111, 120 Cal. Rptr. 681, 534 P.2d 377 ; Jach v. Edson (1967) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925

Defendant's motion for judgment notwithstanding the verdict as properly granted where there is no substantial evidence tending to prove any fact necessary to support plaintiff's verdict. Hamakawa v. Crescent Wharf, etc., Co. (1935) 4 Cal. 2d 499, 501, 50 P.2d 803

See also Comments and References to Forms 1 and 2.
Forms 4-9 [Reserved]

______________


Part II Motion for New Trial
Introduction
Scope of Part
This part discusses the motion for new trial. It includes a notice of intention to move for new trial [Form 10], an allegation for alternative relief [Form 11], a declaration in support of the motion [Form 12], a stipulation and order extending time to file affidavits or declarations [Form 13], an order denying a new trial [Form 14], and an order granting a new trial [Form 15].
Governing Statutes
The motion for new trial is governed by Code Civ. Proc. §§ 655-663.2[Deering's], and 914[Deering's] . Stay of execution of judgment pending determination of a motion for new trial is governed by Code Civ. Proc. § 918[Deering's] [see Ch. 43, Appeal: Stay of Proceedings, § 43.19].
Purpose of Motion
A new trial is a reexamination of an issue of fact in the same court after a trial and decision by a jury, court, or referee [ Code Civ. Proc. § 656[Deering's] ]. If the required grounds exist, the verdict and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on application of the party aggrieved [ Code Civ. Proc. § 657[Deering's] ].
Motion for New Trial When There Has Been No Trial on Merits
A trial court may reexamine issues of law when there has been no trial on the merits [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 90, 315 P.2d 305 ], and a new trial may be appropriate after any of the following:

· A judgment of dismissal after a demurrer is sustained [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

· A judgment of dismissal generally [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

· A judgment on the pleadings [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

· A judgment on an agreed statement of ultimate facts [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

· A judgment of nonsuit either on plaintiff's opening statement or after his or her evidence is presented [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 89, 315 P.2d 305 ].

· A judgment on a directed verdict [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 89, 315 P.2d 305 ].

· A summary judgment [ Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 858, 107 Cal. Rptr. 2d 841, 24 P.3d 493 ; Green v. Del-Camp Investments (1961) 193 Cal. App. 2d 479, 481, 14 Cal. Rptr. 420 ].

· A default judgment granted as a sanction for defendants' failure to comply with discovery orders [ Jacuzzi v. Jacuzzi Bros. (1966) 243 Cal. App. 2d 1, 24, 52 Cal. Rptr. 147 ].

· An order granting a motion to quash a writ of execution [ In re Marriage of Beilock (1978) 81 Cal. App. 3d 713, 719, 146 Cal. Rptr. 675 ].

· A judgment entered when an appellate court vacated a previous judgment with instructions for entry of a new judgment for a greater amount of damages [ Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal. 2d 452, 459-460, 72 Cal. Rptr. 217, 445 P.2d 881 ].
Grounds for Granting New Trial--Summary of Grounds
The following causes, when they materially affect the substantial rights of the moving party, are grounds for an order vacating a verdict, or vacating or modifying any other decision, and granting a new or further trial on some or all of the issues [ Code Civ. Proc. § 657[Deering's] ]:

· An irregularity in the proceedings of the court, the jury, or the adverse party, or any court order or abuse of discretion that prevented a party from having a fair trial [ Code Civ. Proc. § 657(1)[Deering's] ; see --Irregularity in Proceedings, below].

· Jury misconduct [ Code Civ. Proc. § 657(2)[Deering's] ; see --Jury Misconduct, below].

· Accident or surprise, which ordinary prudence could not have guarded against [ Code Civ. Proc. § 657(3)[Deering's] ; see --Accident or Surprise, below].

· Newly discovered evidence that is material for the party making the application and that the party, with reasonable diligence, could not have discovered and produced at trial [ Code Civ. Proc. § 657(4)[Deering's] ; see --Newly Discovered Evidence, below].

· Excessive or inadequate damages [ Code Civ. Proc. § 657(5)[Deering's] ; see --Excessive or Inadequate Damages Awared, below].

· Insufficiency of the evidence to justify the verdict, or the verdict or other decision is against the law [ Code Civ. Proc. § 657(6)[Deering's] ; see --Insufficient Evidence to Justify Verdict or Other Decision and --Verdict or Decision Against Law and --Insufficient Evidence to Justify Verdict or Other Decision and --Verdict or Decision Against Law, below].

· An error in law occurring at the trial and excepted to by the party moving for new trial [ Code Civ. Proc. § 657(7)[Deering's] ; see --Error in Law Occurring at Trial, below].

Whenever an application to vacate a verdict and for a new trial is made on any of the first four grounds under Code Civ. Proc. § 657[Deering's] , set out above, the application must be made with affidavits, whereas an application based on any of the other grounds stated in that section are to be made on the minutes of the court [ Code Civ. Proc. § 658[Deering's] ; see further discussion in --Affidavits and Counteraffidavits and --Use of Reporter's Notes, Pleadings, and Files, below].

A new trial may also be granted on these additional grounds:

· Lack of phonographic report of trial due to death or disability of the reporter or due to loss or destruction of reporter's notes in whole or in substantial part [ Code Civ. Proc. §§ 657.1[Deering's], 914[Deering's] ; see --Lack of Phonographic Report of Trial, below].

· Loss or destruction of bill of exceptions or statement of case due to public calamity [ Code Civ. Proc. § 663.1[Deering's] ; see --Loss or Destruction of Bill of Exceptions or Statement of Case, below].
Irregularity in Proceedings--General Rule
A motion for new trial may be granted if there is an irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which a party was prevented from having a fair trial [ Code Civ. Proc. § 657(1)[Deering's] ]. An irregularity is any overt act of the trial court, jury, or adverse party that violates the right to a fair and impartial trial and amounts to misconduct [ Gray v. Robinson (1939) Cal. App. 2d 177, 182, 91 P.2d 194 ]. The irregularity must materially affect the substantial rights of a party [ Code Civ. Proc. § 657(1)[Deering's] ; Gay v. Torrance (1904) 145 Cal. 144, 148, 78 P. 540 ].

Irregularity in the proceedings must be shown by affidavit or declaration [see Code Civ. Proc. § 658[Deering's] ]. For further discussion of this requirement, see --Affidavits and Counteraffidavits, below.
Attorney Misconduct
When misconduct by the attorney for an adverse party is alleged as grounds for new trial, prejudicial error is committed only when the attorney's conduct consists of a willful or persistent effort to place before a jury clearly incompetent evidence, or the statements or remarks of counsel are of such a character as to manifest a design on his or her part to arouse the jury's resentment, prejudices, or passions against the moving party, or to enlist the jury's sympathy in favor of his or her client and against the moving party, and any jury instructions to disregard such offered evidence or objectionable remarks cannot be deemed to have cured the evil or ill effect [ Tingley v. Times Mirror (1907) 151 Cal. 1, 23, 89 P. 1097 ; Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 210-211, 260 Cal. Rptr. 431 ]. In assessing that prejudice, each case ultimately must rest on the court's view of the overall record, taking into account such factors, among others, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances [ Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 211, 260 Cal. Rptr. 431 ].
Jury Misconduct--General Rule
A motion for a new trial may be brought on the ground of jury misconduct [see Code Civ. Proc. § 657(1)[Deering's], (2)[Deering's] ]. The right to an unbiased and unprejudiced jury is an inseparable and inalienable part of the right to trial by jury guaranteed in the federal constitution [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 110, 95 Cal. Rptr. 516, 485 P.2d 1132 ]. Thus, this ground is functionally equilavent to the ground of irregularity in the jury proceedings preventing a fair trial [see Code Civ. Proc. § 657(1)[Deering's] and discussion in -- --Irregularity in Proceedings, above]. For discussion of the principle types of jury misconduct, see -- --Types of Jury Misconduct, below.

Jury misconduct must be shown by affidavit or declaration [see Code Civ. Proc. § 658[Deering's] and Forms 12.1, 12.2; for further discussion of this requirement, see --Affidavits and Counteraffidavits, below]. Once established, jury misconduct gives rise to a rebuttable presumption of prejudice [see discussion in -- --Presumption of Prejudice, below].

If a party or that party's counsel becomes aware of facts constituting jury misconduct at any time during trial, the party must promptly bring the matter to the court's attention; failure to do so in a timely manner results in the point being deemed waived as a basis for a motion for a new trial [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ; see also People v. Adame (1973) 36 Cal. App. 3d 402, 409-410, 111 Cal. Rptr. 462 ]. Thus, a party seeking a new trial on the grounds of jury impropriety must usually present, in addition to other affidavits showing jury misconduct, a ``no knowledge'' affidavit showing that neither the moving party nor that party's counsel knew of that misconduct before the verdict was returned [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ; see Form 12.3 and further discussion of this requirement under -- --``No Knowledge'' Declaration, below].

Note that a single act may show not only jury misconduct, or bias, but may also help show another ground for vacating the jury's verdict and granting a new trial. For example, jury misconduct may be included as a reason for the conclusion that the excessive damages were awarded [ Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 166, 171, 209 Cal. Rptr. 427 (jury in wrongful death action improperly considered income taxes on verdict and attorney's fees and discussed public benefit from taxes levied on verdict)].
Types of Jury Misconduct--Concealment of Bias on Voir Dire
It is jury misconduct for which a new trial may be granted, if a juror has concealed during voir dire examination a state of mind that prevents his or her acting impartially. The concealment need not be intentional [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 431, 82 Cal. Rptr. 1 ]. Thus, a juror's statement during recess that the jury could bring in a verdict at that time rather than waiting until conclusion of the trial showed misconduct on voir dire since that juror had stated on voir dire examination that he could keep an open mind until all the evidence and applicable law were presented [ Deward v. Clough (1966) 245 Cal. App. 2d 439, 443-445, 54 Cal. Rptr. 68 ].

Juror affidavits may be use to show occurrences during the trial and deliberations that tend to prove the existence of prejudice in the mind of a juror that would prevent that juror from acting impartially and to show that bias or disqualification was concealed by false answers on voir dire. For example, affidavits were accepted to impeach a verdict when a juror had knowledge as to the qualifications of an expert appraisal witness as a result of a real estate course he was taking at the time of trial and failed to state that special knowledge on voir dire [ People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 389, 63 Cal. Rptr. 138 ].
Prejudicial Communication by or to Juror
It is misconduct for a juror during trial to discuss the matter under investigation outside the court or receive any information on the subject of the litigation except in open court and in the manner provided by law [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 431, 82 Cal. Rptr. 1 ; People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 390, 63 Cal. Rptr. 138 ].

The following are examples of juror communications held to constitute misconduct under this rule:

· A juror reads newspaper accounts of the case and the subject matter of the accounts are likely to influence the juror [ Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1679, 25 Cal. Rptr. 2d 667 ].

· A juror communicates to the rest of jury information outside the evidence that is relevant to important issues in the case [ People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 598, 128 Cal. Rptr. 697 (juror questioned non-juror acquaintance who was employed by a party to the case, concerning the likelihood of alleged injuries, and communicated the employee's answers during deliberations); People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 390, 63 Cal. Rptr. 138 (juror conveyed during deliberation information the juror had previously learned in a class concerning methods of appraisal and the appraiser qualifications, which bore directly on controlling issues in the case)].

· A juror communicates to the rest of jury a statement of law not contained in the court's instructions [ Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1349-1350, 232 Cal. Rptr. 588 ].

· A juror refers to a dictionary for the definition of the term ``preponderance,'' and discussing the definition during deliberations in relation to a jury instruction concerning ``preponderance of the evidence'' [ Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 323, 276 Cal. Rptr. 430 (variance between legal meaning and dictionary meaning created clear and substantial risk that jury might misapply burden of proof)].

· A juror communicates to other jurors an opinion on the merits of the case before it has been submitted for consideration [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 434, 82 Cal. Rptr. 1 ; see also -- --Concealment on Voir Dire, above].

· A juror solicits a personal physician's opinion concerning an issue in a malpractice case and communicates the response to other jurors [ Weathers v. Kaiser Foundation Hosps. (1971) 5 Cal. 3d 98, 106-107, 95 Cal. Rptr. 516, 485 P.2d 1132 ].

Instances in which a juror communication has been held not to justify a new trial include the following:

· A mere communication between a witness and a juror on matters unrelated to the case, without any showing that the juror was influenced by the communication to the prejudice of the moving party [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 427-428, 82 Cal. Rptr. 1 (social greeting between juror and appraisal witness on courthouse steps recollecting a previous business transaction but not involving discussion of the case)].

· A juror communicates with a witness, seeking information concerning the case, but the witness specifically refuses to answer the questions or converse with the juror [ City of Los Angeles v. Lowensohn (1976) 54 Cal. App. 3d 625, 636-638, 127 Cal. Rptr. 417 ].
Experimentation Producing New Evidence
It is misconduct for a juror to engage in an experiment that produces new evidence [ Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal. App. 3d 1724, 1746, 286 Cal. Rptr. 435 ]. For example, it is improper for a juror to compare turnstiles in markets and communicate the results of this investigation to other jurors in a case involving an injury allegely the result of a market turnstile [ Lankster v. Alpha Beta Co. (1993) 15 Cal. App. 4th 678, 682, 18 Cal. Rptr. 2d 923 (juror's comparing turnstiles in other markets to one that injured plaintiff and communicating investigation to other jurors)].

The entire jury, however, may carry out experiments that are within the lines of offered evidence [ Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657, 115 P. 313 ]. Nothing requires that the jury's deliberations be entirely verbal. A court would expect a conscientious jury to examine the testimony of the witnesses closely, no less so when that testimony takes the form of a physical act [ People v. Cooper (1979) 95 Cal. App. 3d 844, 853-854, 157 Cal. Rptr. 348 ]. There is no misconduct if the jurors merely duplicate a demonstration presented at trial [see Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal. App. 3d 1724, 1746-1747, 286 Cal. Rptr. 435 (citing Cooper, above )].
Chance Verdict
Jury misconduct expressly includes the jury's arriving at a verdict or finding ``by a resort to a determination by chance'' [see Code Civ. Proc. § 657(2)[Deering's] ]. Thus, verdicts reached by tossing a coin, casting a die, drawing lots or other forms of gambling are improper chance verdicts [ Dixon v. Pluns (1893) 98 Cal. 384, 387, 33 P. 268 ; Chronakis v. Windsor (1993) 14 Cal. App. 4th 1058, 1064, 18 Cal. Rptr. 2d 106 ].

A ``quotient verdict'' may also constitute an improper ``chance'' verdict. An improper quotient verdict is one the jury has reached by simply adding the damages favored by each juror and dividing by the number of jurors, after previously agreeing to be bound by such a verdict without further deliberation [ Dixon v. Pluns (1893) 98 Cal. 384, 387, 33 P. 268 ; Chronakis v. Windsor (1993) 14 Cal. App. 4th 1058, 1064, 18 Cal. Rptr. 2d 106 ]. A quotient verdict is not an improper chance verdict, however, when it does not result from a prior agreement to be bound without further consideration. If the jurors discuss and ballot on the adoption or rejection of a average sum, it is conclusive evidence they were not bound by a previous agreement to accept it without further consideration [ Bardessono v. Michels (1970) 3 Cal. 3d 780, 794-795, 91 Cal. Rptr. 760, 478 P.2d 480 ; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200 ]. Evidence that jurors rounded off an average sum before reaching a final verdict is also proof that they had no agreement to adopt the average [ Will v. Southern Pacific Co. (1941) 18 Cal. 2d 468, 477-478, 116 P.2d 44 ; Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 436, 89 Cal. Rptr. 514 ].

Jury misconduct consisting of a chance verdict may be proved the affidavit of any one of the jurors [ Code Civ. Proc. § 657(2)[Deering's] ; see also Affidavits and Counteraffidavits, below]. The only evidence sufficient to rebut juror affidavits showing that jurors reached a chance verdict is credible counteraffidavits showing that the verdict was proper, affirmative statements or evidence of subsequent deliberation by the jury, or evidence of rounding off the average figure that is apparent on the face of the affidavits [see e.g. Bardessono v. Michels (1970) 3 Cal. 3d 780, 794, 91 Cal. Rptr. 760, 478 P.2d 480 (counteraffidavits show average figure served as basis for further deliberation); Will v. Southern Pacific Co. (1941) 18 Cal. 2d 468, 477, 116 P.2d 44 (no counteraffidavits rebut evidence of improper verdict); Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 435, 89 Cal. Rptr. 514 (evidence of rounding off app eared on face of affidavits)]. When there are conflicting jurors' affidavits on the issue of a chance verdict, the trial court may make its determination on the issue, and that decision will not be disturbed on appeal [ Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200 ; see also Chronakis v. Windsor (1993) 14 Cal. App. 4th 1058, 1067, 18 Cal. Rptr. 2d 106 (appellate court will not draw inferences from jury affidavits to rebut prima facie evidence of quotient verdict)].
Presumption of Prejudice
Jurors ordinarily are presumed to have followed the court's instructions [ People v. Sanchez (2001) 26 Cal. 4th 834, 852, 29 P.3d 209, 111 Cal. Rptr. 2d 129 ; Craddock v. Kmart Corp. (2001) 89 Cal. App. 4th 1300, 1308, 107 Cal. Rptr. 2d 881 ; see also People v. Chavez (1958) 50 Cal. 2d 778, 790, 329 P.2d 907 (on appeal, reviewing court must presume jury followed trial court's instructions)]. In the absence of evidence to the contrary, the presumption that the jury adhered to the limiting instructions will control [ People v. Beach (1983) 147 Cal. App. 3d 612, 625, 195 Cal. Rptr. 381 ; People v. Zack (1986) 184 Cal. App. 3d 409, 416, 229 Cal. Rptr. 317 ]. However, juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that a party was prejudiced and may establish juror bias [ Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1131, 122 Cal. Rptr. 2d 139 ]. This presumption may be rebutted only by an affirmative evidentiary showing that prejudice does not exist [ Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 321, 276 Cal. Rptr. 430 ; Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1348, 232 Cal. Rptr. 588 ; see Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 417, 185 Cal. Rptr. 654, 650 P.2d 1171 (although presumption applied in criminal cases, no principled distinction may be drawn between civil and criminal cases for purposes of presumption of prejudice arising from juror misconduct)]. The presumption of prejudice in a civil case is rebutted if the reviewing court reaches one of the following three conclusions [ Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1131-1132, 122 Cal. Rptr. 2d 139 ]:

· The record establishes the absence of prejudice.

· A review of the entire record shows there is no reasonable probability of actual harm to the complaining party under the constitutional standard of People v. Watson (1956) 46 Cal. 2d 818, 836, 299 P.2d 243 [see Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 416-417, 185 Cal. Rptr. 654, 650 P.2d 1171 ; McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal. App. 4th 256, 265, 83 Cal. Rptr. 2d 734 ].

· In the case of possible ``actual bias'' of a juror whose vote may have been determinative of the verdict, there is no substantial likelihood that at least one juror was impermissibly influenced [see Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1679-1680, 25 Cal. Rptr. 2d 667 , disapproved on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal. 4th 30, 41, 876 P.2d 999, 32 Cal. Rptr. 2d 200 ; see also Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 110, 95 Cal. Rptr. 516, 485 P.2d 1132 ].



Prejudice exists when there is a substantial likelihood that enough jurors were impermissibly influenced by the misconduct such that it affected the verdict to the detriment of the moving party. Because only three fourths of a civil jury may render a verdict, the number of tainted jurors necessary to permit a finding of substantial likelihood of impermissible influence will vary depending on the circumstances of the case. For example, conclusive evidence of only one tainted juror would be sufficient to preclude rebuttal of the presumption of prejudice when the jury's verdict is nine to three and the tainted juror voted with the majority. By contrast, the record itself rebuts the presumption when the evidence indicates that only juror is tainted and the jury's verdict was unanimous; the remaining untainted jurors are sufficiently numerous to render a proper and fair verdict [see Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 321-323 n.5, 276 Cal. Rptr. 430 ].
``No Knowledge'' Declaration
A party who is requesting the court to grant a new trial on the ground of jury misconduct must usually file a ``no-knowledge'' declaration, stating that neither the attorney nor the client was aware of the alleged misconduct of the juror prior to the verdict [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ; see also Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal. App. 3d 177, 188, 269 Cal. Rptr. 240 ; for discussion of procedure for filing and service of affidavits for use on a motion for new trial based on misconduct of the jury, see --Affidavits and Counteraffidavits, below].

The policy behind this requirement is to prevent a party from remaining silent after becoming aware of misconduct, in the hope of a successful verdict, while secretly preserving the error in the event of an unfavorable one [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ].

The ``no knowledge'' affidavit may be submitted by one person, but it must affirmatively establish that neither the attorney nor the client had knowledge before the verdict of jury misconduct [ People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 599, 128 Cal. Rptr. 697 (attorney's declaration established lack of knowledge only as to attorney and did not establish client's lack of knowledge)]. The ``no knowledge'' declaration is not required when the alleged jury misconduct is of such a nature that it could not have been known to a party until after a verdict was rendered [ Krouse v. Graham (1977) 19 Cal. 3d 59, 82, 137 Cal. Rptr. 863, 562 P.2d 1022 (comments made by several jurors during deliberations)]. Failure to file a ``no-knowledge'' declaration is a curable procedural defect; a party who does not object in the trial court to the absence of this declaration waives his or her right to raise the issue for the first time on appeal [ Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal. App. 3d 177, 186-188, 269 Cal. Rptr. 240 ].

For a form of ``no knowledge'' affidavit, see Form 12.3.
Accident or Surprise
The motion for new trial may be granted on the ground of accident or surprise, which ordinary prudence could not have guarded against [ Code Civ. Proc. § 657(3)[Deering's] ]. The terms ``accident'' and ``surprise,'' although not strictly synonymous, have substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly placed to that party's injury and without any negligence of his or her own [ Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432, 189 P.2d 271 ; see In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 154-155, 242 Cal. Rptr. 649 (negligence of party's counsel is not a grou nd on which a new trial may be granted under Code Civ. Proc. § 657(3)[Deering's] )].

Accident or surprise must be shown by affidavit or declaration [see Code Civ. Proc. § 658[Deering's] ; for further discussion of this requirement, see --Affidavits and Counteraffidavits, below].
Newly Discovered Evidence
Under Code Civ. Proc. § 657(4)[Deering's] , a motion for new trial may be granted on the grounds of newly discovered evidence, material for the party making the application, that he or she could not with reasonable diligence have discovered and produced at trial [ Code Civ. Proc. § 657(4)[Deering's] ]. All of the followings element must be established [ Elysium Institute, Inc. v. County of Los Angeles (1991) 232 Cal. App. 3d 408, 438, 283 Cal. Rptr. 688 ; National Elevator Services, Inc. v. Department of Industrial Relations (1982) 136 Cal. App. 3d 131, 137, 186 Cal. Rptr. 165 ; Horowitz v. Noble (1978) 79 Cal. App. 3d 120, 137, 144 Cal. Rptr. 710 ]:

· The evidence is newly discovered.

· There was reasonable diligence in discovering and producing the evidence.

· The evidence is material to the moving party's case.

Since a litigant should exhaust every reasonable effort to produce all existing evidence at trial, the claim of newly discovered evidence as a basis for a new trial is looked on with suspicion and disfavor by the courts [ Hicks v. Ocean Shore Railroad, Inc. (1941) 18 Cal. 2d 773, 789, 117 P.2d 850 ].

Newly discovered evidence must be established by affidavit or declaration [see Code Civ. Proc. § 658[Deering's] ; for further discussion of this requirement, see --Affidavits and Counteraffidavits, below].
Excessive or Inadequate Damages Awarded
A motion for new trial is not granted on the ground of excessive or inadequate damages unless, after weighing the evidence, the court is convinced from the entire record, including reasonable inferences drawn from it, that the court or jury clearly should have reached a different verdict or decision [ Code Civ. Proc. § 657[Deering's] ]. The judge is not permitted to substitute his or her judgment for that of the jury on the question of damages unless it appears from the record that the jury verdict was improper. For example, a trial judge's personal opinion based on the ranges of awards in other cases is not a lawful basis for granting a new trial for excessive damages [ Bigboy v. County of San Diego (1984) 154 Cal. App. 3d 397, 406-407, 201 Cal. Rptr. 226 ].

The court may grant a new trial subject to the condition that the motion is denied if the court obtains consent from the appropriate party for the addition or reduction of damages [ Code Civ. Proc. § 662.5[Deering's] ; see also Conditional Granting or Denial of Motion, below].

Excessive or inadequate damages must be established by the minutes of the court [see Code Civ. Proc. § 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].

For further discussion, see Ch. 177, Damages, General Introduction.
Insufficient Evidence to Justify Verdict or Other Decision
Under Code Civ. Proc. § 657(6)[Deering's] , a motion for new trial may be granted on the ground of insufficiency of the evidence to justify the verdict or other decision. A new trial may not be granted on this ground unless the court is convinced from the entire record, including inferences from it, that the court or jury should have reached a different verdict or decision [ Code Civ. Proc. § 657(6)[Deering's] ].

If a trial court rules on a motion for a new trial made on the ground of insufficiency of the evidence, the trial judge is required to weigh the evidence and judge the credibility of witnesses. Whereas it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and, in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. Insufficiency of the evidence in this context means an absence of evidence or that the evidence received, in the individual judgment of the trial judge, is lacking in probative force to establish the proposition of fact to which it is addressed [ Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 215, 260 Cal. Rptr. 431 ].

The ground that the evidence was insufficient to justify the verdict must be established by the minutes of the court [see Code Civ. Proc. § 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].
Verdict or Decision Against Law
Another ground for granting a motion for new trial is that the verdict or decision is against law [ Code Civ. Proc. § 657(6)[Deering's] ]. This ground is limited to situations that are not covered by the other subdivisions of Code Civ. Proc. § 657[Deering's] , such as error in law occurring at trial [see McCown v. Spencer (1970) 8 Cal. App. 3d 216, 229 n.3, 87 Cal. Rptr. 213 ] or insufficiency of evidence [see Brooks v. Harootunian (1968) 261 Cal. App. 2d 680, 686, 68 Cal. Rptr. 374 ].

A verdict is against law when it is contrary to correct jury instructions [ Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 958, 111 Cal. Rptr. 210 ]. A decision or verdict is also against law (1) when there is a failure to find on a material issue; (2) when the findings are irreconcilable; and (3) when the evidence is insufficient in law and without conflict on any material point. If a general verdict is returned, it is against law only when it is unsupported by any substantial evidence. The court cannot merely weigh conflicting evidence and find a balance against the judgment [ Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 789, 342 P.2d 903 ].

1981 legislation amended Code Civ. Proc. § 632[Deering's] , eliminating findings of fact and conclusions of law. Nevertheless, it appears that a decision may be against law when the court has failed to resolve a specified controverted issue in its statement of decision or if the statement of decision is inconsistent, ambiguous, or uncertain [see Code Civ. Proc. §§ 632[Deering's], 634[Deering's] ; Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 383, 215 P.2d 487 ]. But these errors must materially affect the substantial rights of the aggrieved party in order for a new trial to be granted [see Code Civ. Proc. § 657[Deering's] ].

The ground that the verdict or decision is against the law must be established by the minutes of the court [see Code Civ. Proc. § 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].
Error in Law Occurring at Trial
A motion for a new trial may be granted for an error in law occurring at trial and excepted to by the party making the application [ Code Civ. Proc. § 657(7)[Deering's] ]. Errors of law occurring at trial may include erroneous rulings on evidence [ Richard v. Scott (1978) 79 Cal. App. 3d 57, 63, 144 Cal. Rptr. 672 ]; erroneous or misleading jury instructions [ Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587, 66 Cal. Rptr. 395 ]; erroneous denial of a jury trial [ Johnson v. Superior Court (1932) 121 Cal. App. 288, 292, 8 P.2d 1047 ]; erroneous grant of nonsuit [ Castillo v. Warren (1941) 44 Cal. App. 2d 903, 907, 113 P.2d 232 ]; or the erroneous denial of a motion for directed verdict [ Steele v. Werner (1938) 28 Cal. App. 2d 554, 556, 83 P.2d 56 ].

This ground differs from Code Civ. Proc. § 657(1)[Deering's] , irregularity in proceedings of court, jury, or adverse party, in that this motion must be made on the minutes of the court, as opposed to the affidavits or declarations of Code Civ. Proc. § 657(1)[Deering's] , and the moving party must have ex cepted to the error of law occurring at trial [see Code Civ. Proc. §§ 657(7)[Deering's], 658[Deering's] ]. Many orders and rulings, however, are deemed excepted to without formal objection at trial [see Code Civ. Proc. § 647[Deering's] ].

The ground that there was an error in law must be established by the minutes of the court [see Code Civ. Proc. § 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].
Lack of Phonographic Report of Trial
A motion for new trial may be granted if the right to a phonographic report has not been waived and when it is impossible to have a phonographic report of trial due to death or disability of the reporter or loss or destruction of the reporter's notes in substantial part [ Code Civ. Proc. §§ 657.1[Deering's], 914[Deering's] ]. The moving party must show that the transcript is necessary to present substantial issues, that it cannot be procured for one of the reasons in the statute, and that proper diligence has been exercised [ Rambo v. Rambo (1948) 84 Cal. App. 2d 632, 634, 191 P.2d 480 ; see In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 151-152, 242 Cal. Rptr. 649 ].

When determining whether the reporter's transcript is necessary to present substantial issues, a reasonable test of substantiality is whether questions the moving party desires to raise on appeal could be properly considered without the lost portion of the transcript. If they could, then the loss would not be considered substantial [ Santa Cruz County Redevelopment Agency v. Izant (1995) 37 Cal. App. 4th 141, 147, 43 Cal. Rptr. 2d 366 ].

If a court orders a new trial, it must order a complete, and not a partial, new trial. For example, if reporter's notes for the first day of a three-day trial are lost, a court may not order that a witness who previously testified on that first day testify again, and that a transcript of the new testimony be added to the transcript of the second and third days of trial to ``complete'' a record for appeal. Other than a complete new trial, the permissible solutions to the problem of the missing reporter's notes are limited to stipulations, agreed statement, or settled statement [ Weinstein v. E.F. Hutton & Co. (1990) 220 Cal. App. 3d 364, 369, 269 Cal. Rptr. 443 ]. For further discussion of these procedures, see Ch. 44, Appeal: Preparing and Filing the Record, and Ch. 533, Stipulations.
Loss or Destruction of Bill of Exceptions or Statement of Case
The court may grant a new trial of any action or proceeding when all of the following conditions exist [ Code Civ. Proc. § 663.1[Deering's] ]:

(a) Any proposed bill of exceptions or statement of the case on motion for new trial is lost or destroyed by reason of conflagration or other public calamity;

(b) No other record of the proceedings of the trial can be obtained;

(c) The action or proceeding is subject to review by motion for new trial pending at the time of the destruction;

(d) The court in which the action or proceeding is pending deems it impossible or impracticable to restore those proceedings and to settle a bill of exceptions or statement of the case containing those proceedings, so as to enable the court to review the judgment or order by motion for new trial; and

(e) At the time of the loss or destruction, a motion for new trial was pending.

In order to grant a new trial on these grounds, it is unnecessary to have any bill of exceptions or statement of the case settled, but on the facts required by Code Civ. Proc. § 663.1[Deering's] being shown to the s